The claimant seeks - based on the environmental information law of the federal state of Baden-Württemberg - from the Baden-Württemberg State Ministry (Staatsministerium Baden-Württemberg) access to documents relating to tree felling for the "Stuttgart 21" transport and urban development project in Stuttgart's Schlossgarten park in October 2010.

Subject matters are the access to a piece of information for the leadership of the State Ministry relating to the committee of inquiry on the follow-up to a police operation on 30 September 2010 in Stuttgart's Schlossgarten park (no. 1) and the State Ministry's file notes relating to a conciliation procedure conducted in connection with the "Stuttgart 21" project (no. 4).

The Administrative Court (Verwaltungsgericht) dismissed the action, which was filed after an application insofar remained unsuccessful, by partial judgment (Teilurteil) of 9 January 2015. On appeal on points of fact and law by the claimant, the Higher Administrative Court (Verwaltungsgerichtshof) obliged the defendant to make the requested documents available to the claimant by judgment of 29 June 2017. It concerned environmental information, which were not protected as internal communications since such protection existed only, ratione temporis, for the duration of an authority's decision-making process.

By its appeal on points of law, which was granted leave to bring by the Higher Administrative Court, the defendant Federal State of Baden-Württemberg challenges that judgment. 

By decision of 8 May 2019 - 7 C 28.17 - the 7th Senate suspended the proceedings regarding the access to the documents under no. 1 and no. 4, and requested the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) to clarify several questions on the interpretation of the term internal communication within the meaning of the Environmental Information Directive. By judgment of 20 January 2021 - C-619/19 [ECLI:EU:C:2021:35], Land Baden-Württemberg - the Court of Justice decided on this request for a preliminary ruling.

The defendant's appeal on points of law was successful.

9 (...)

10 (...)

11 With regard to the access to the documents under no. 1 (a piece of information on the committee of inquiry) and no. 4 (file notes to the conciliation procedure), the decision of the Higher Administrative Court breaches the law that is subject to an appeal on points of law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)) and does not prove to be correct for other reasons either (section 144 (4) VwGO). These documents are to be considered internal communications within the meaning of article 4 (1) first subparagraph (e) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ L 41 p. 26) - Environmental Information Directive (EID) -. On the basis of the factual findings established by the court responsible for finding the facts, the Senate cannot conclusively decide on the action, however. The case therefore had to be remitted to the Higher Administrative Court for a further hearing and decision (section 144 (3) first sentence no. 2 VwGO).

12 1. The claimant's right to access information is based on section 24 (1) first sentence of the Environmental Administration Act of the Federal State of Baden-Württemberg (UVwG BW, Umweltverwaltungsgesetz) of 25 November 2014 (Law Gazette (GBl., Gesetzblatt) p. 592), as last amended by article 46 of the Act of 11 February 2020 (GBl. p. 37, 43), under which every person is entitled to free access to environmental information in accordance with this Act.

13 The interpretation and application of federal state law are subject to review by the court deciding on appeals on points of law to the extent that the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) must examine whether the lower court correctly recognised and applied the standards of EU law relevant for the decision which form part of federal law within the meaning of section 137 (1) VwGO. EU law standards are at the centre where the lower court interprets the provision of federal state law with a view to ensuring conformity with EU law, in other words, if it considers itself obliged or prompted by EU law to adopt a certain interpretation when applying federal state law (see BVerwG, partial judgment of 8 May 2019 - 7 C 28.17 [ECLI:DE:BVerwG:2019:080519U7C28.17.0] - (...) para. 15 with further references). This is the case here with regard to the provisions of the Environmental Administration Act of the Federal State of Baden-Württemberg on access to environmental information, which serve to transpose the Environmental Information Directive and which the Higher Administrative Court has felt compelled to interpret in conformity with the Directive.

14 2. On the basis of the findings of the Higher Administrative Court, which are not contested by procedural complaints, the Senate has no reason to doubt that the documents requested by the claimant under no. 1 and 4 constitute environmental information within the meaning of article 2 no. 1 (c) EID and section 23 (3) no. 3 (a) UVwG BW (see already BVerwG, decision of 8 May 2019 - 7 C 28.17 [ECLI:DE:BVerwG:2019:080519B7C28.17.0] - (...) para. 9).

15 Pursuant to article 2 no. 1 (c) EID, a piece of information constitutes environmental information if it relates to a measure or activity at least likely to affect elements of the environment (for more details, see BVerwG, partial judgment of 8 May 2019 - 7 C 28.17 - (...) para. 17 with further references).

16 Pursuant to the findings of the Higher Administrative Court, it is at least possible that the committee of inquiry and the related actions of the federal state government had an influence on the further progress of the construction project "Stuttgart 21", affecting elements of the environment. With regard to conciliation, pursuant to these factual findings by the competent court, it also seems at least possible that these actions have had or are having an effect on elements of the environment.

17 3. However, the claimant's access to information may be precluded by a ground for refusal of the application under section 28 (2) no. 2 UVwG BW. Contrary to the assumption of the Higher Administrative Court, the documents requested under no. 1 and 4 are to be considered "communications" within the meaning of article 4 (1) first subparagraph (e) EID and therefore also within the meaning of section 28 (2) no. 2 UVwG BW, regardless of an ongoing decision-making process by an authority. Further factual findings by the competent court are required to answer the question whether such communications are also to be considered "internal" communications within the meaning of said provisions.

18 a) Pursuant to article 4 (1) first subparagraph (e) EID, Member States may provide for a request for access to environmental information to be refused if it concerns internal communications, taking into account the public interest served by disclosure of such information. The legislature of the federal state of Baden-Württemberg made use of this option in section 28 (2) no. 2 UVwG BW. The Higher Administrative Court's view that, ratione temporis, this ground for refusal applied only for the duration of a decision-making process by an authority is not compatible with EU law.

19 In response to the reference for a preliminary ruling by the 7th Senate, the Court of Justice has clarified with regard to the term "communication" that this word relates to a piece of information addressed by an author to someone, an addressee who or which may be an abstract entity or a specific person belonging to that entity, such as a member of staff or an official (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 37). Under the case-law of the Court of Justice, environmental information is "internal" if it does not leave the internal sphere of a public authority, in particular when it has not been disclosed to a third party or been made available to the public (CJEU, see above, para. 42). Where a public authority holds environmental information that it has received from an external source, that information may also be "internal" if it was not or should not have been made available to the public before that authority received it and it does not leave that authority's internal sphere after it received it (CJEU, see above, para. 43). The exception rule laid down in article 4 (1) first subparagraph (e) EID thus covers information that circulates within a public authority and which, on the date of the request for access, has not left the public authority's internal sphere inter alia as a result of being disclosed to a third party or being made available to the public (CJEU, see above, para. 47). The rule laid down in article 4 (1) first subparagraph (e) EID does not contain a limitation of its application in time. The provision contains nothing to support such a limitation (see CJEU, see above, para. 55 et seqq.).

20 On the basis of the factual findings established by the competent court, the documents requested under no. 1 and 4 are to be considered "communications" within the meaning of article 4 (1) first subparagraph (e) EID, namely information addressed by an author to the leadership of the State Ministry as the addressee. Whether the communications in question are also "internal" within the meaning of this provision is largely subject to whether - as the claimant alleges - they were made known to a third party outside the State Ministry. This has to be clarified by the court responsible for finding the facts (see, in this respect, also CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 52) and the case must therefore be remitted back to the Higher Administrative Court for a further hearing and decision.

21 b) To the extent that the documents requested under no. 1 and 4 are to be considered "internal communications", it must be further examined whether the public interest in disclosure of the environmental information outweighs the interest in refusing disclosure under section 28 (2) no. 2 UVwG BW (article 4 (2) second subparagraph first and second sentence EID).

22 Under the case-law of the Court of Justice, this weighing is particular important since the material scope of application of the exception to the right of access to environmental information provided for "internal communications" is particularly broad. Thus, in order not to render the Environmental Information Directive meaningless, the weighing of the interests involved that is required in article 4 (1) first subparagraph (e) and article 4 (2) second subparagraph EID must be tightly controlled (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 60).

23 For the stipulations underlying the weighing of interests, the Court of Justice points to recital 1 of the Environmental Information Directive, from which it follows that the reasons which may support disclosure and which an authority must in any event take into account when weighing the interests involved include bringing about "a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and … a better environment" (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 62). The public authority is also required to examine any particulars provided by the applicant as to the grounds that may justify disclosure of the information sought (CJEU, see above, para. 63). In addition, public authorities to which a request for access to environmental information contained in an internal communication has been made must take into account the time that has passed since that internal communication and the information that it contains were drawn up (CJEU, see above, para. 64)

24 When considering the content of internal communications, a distinction must be made between the compilation of factual information on the one hand and evaluative or tactical strategic considerations at the core of decision-making by an authority on the other, the protection of which must be given particular weight in the weighing process. The specific need for and worthiness of protection of evaluative or tactical strategic considerations follows from the objective of article 4 (1) first subparagraph (e) EID, which is to create, for authorities subject to the obligation to provide access to environmental information, a protected space in order to engage in reflection and to pursue internal discussions (see CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 50).

25 A specific need for and worthiness of protection of internal communications may also follow from having a view to the position of the authority subject to the obligation to provide access to environmental information. If - as is the case here - a claim is made against a supreme federal or federal state authority, it must be examined whether the information requested is subject to the special protection by the core of autonomous executive decision-making (Kernbereich exekutiver Eigenverantwortung) guaranteed by the constitution. Information from the sphere concerning the preparation of government decisions, providing information on the process of formation of the will, is all the more worthy of protection the closer it is to the government decision (see, in this respect, BVerwG, judgment of 13 December 2018 - 7 C 19.17 [ECLI:DE:BVerwG:2018:131218U7C19.17.0] - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 164, 112 para. 18 with further references). This protection also applies in view of the Environmental Information Directive. By recognising the aspect of confidentiality of information contained in an internal communication, EU law proves to be open to the protection of the core of executive decision-making guaranteed by the constitution.

26 As regards time, when weighing, pursuant to the case-law of the Court of Justice, consideration must be given to the fact that the exception to the right of access to environmental information provided for in article 4 (1) first subparagraph (e) EID can apply only for the period during which protection is justified in the light of the content of such a communication. Therefore, a public authority may be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up (see CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 64 et seq. with further references).

27 Insofar, the Court of Justice makes comparative reference to its case-law concerning the protection of trade secrets (see CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 65). Accordingly, where information that could constitute trade secrets at a certain moment in time is at least five years old, that information must, as a rule, on account of the passage of time, be considered historical and therefore as having lost its secret or confidential nature unless, exceptionally, the party relying on that nature shows that, despite its age, that information still constitutes an essential element of its commercial position or that of interested third parties (CJEU, judgment of 19 June 2018 - C-15/16 [ECLI:EU:C:2018:464], Bundesanstalt für Finanzdienstleistungsaufsicht - para. 54 with further references). In terms of protection of internal communications, one may also infer from this case-law the basic idea that a need for protection regularly no longer exists after a certain period of time has elapsed since they were drawn up. However, this does not exclude the possibility that in individual cases an overriding interest in confidentiality may continue to exist over a longer period of time.

28 A rigid time limit, beyond which the public interest in the disclosure of the environmental information outweighs the interest in its confidentiality without proof to the contrary, cannot be determined for internal communications within the meaning of article 4 (1) first subparagraph (e) EID. The conclusion reached in the assessment of the individual case shall remain decisive. In contrast to the protection of trade secrets, the confidentiality of internal communications is neither (solely) about the concretely affected piece of information as such, nor is it about the economic position in competition - which is always linked to a concrete market situation. Rather, the objective of creating, for public authorities, a protected space for internal considerations and discussions, which goes beyond the (mercantile) protection of a single piece of information, is of central importance (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 50).

29 Against this background, in order to determine the continued need for and worthiness of protection of internal communications, one must, even after a longer period of time, examine whether it is to be considered information the disclosure of which would exclude (also) future unbiased communication within the authority. As explained, this can particularly be the case with evaluative or tactical strategic reflections. The need for and worthiness of protection of such information will regularly persist longer than that of purely factual information.

30 Where the core of autonomous executive decision-making is affected, access to documents on completed processes will also have to be refused for a longer period of time in order to protect the freedom and openness of formation of the will within the government, which can be impaired by "restrictive preliminary effects" of subsequent publicity (see BVerwG, judgment of 13 December 2018 - 7 C 19.17 - BVerwGE 164, 112 para. 18 with further references). A point of reference for a period of time that is not to be fallen short of can be the expiry of at least two legislative terms.

31 A public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 69 with further references).

32 The weighing to be performed by the authority subject to the obligation to provide access to information of the public interest in disclosure of the environmental information against the interest in refusing disclosure is subject to full judicial review (CJEU, judgment of 20 January 2021 - C-619/19, Land Baden-Württemberg - para. 67; see also, BVerwG, partial judgment of 8 May 2019 - 7 C 28.17 - (...) para. 28 with further references).

33 As part of the judicial review of the weighing of interests by the authority, it is up to the court responsible for finding the facts to consider whether it needs partial or complete knowledge of the requested information. To the extent that the judicial conviction is that this is the case, the person subject to a request for access to information shall be ordered to submit the requested documents to the court. Following the submussion of a declaration refusing disclosure (Sperrerklärung) by the defendant, this could, if necessary, allow for in camera proceedings to be carried out pursuant to section 99 (2) VwGO. Within the assessment by the court responsible for finding the facts, it will, however, also have to consider that knowledge of the respective content of the requested documents or carrying out in camera proceedings is not necessarily required. Rather, this necessity is decisively subject to the possibility of comprehensibly stating the existence of grounds for refusal even without disclosing the content of the documents concerned (see BVerwG, judgment of 30 October 2019 - 10 C 20.19 [ECLI:DE:BVerwG:2019:301019U10C20.19.0] - (...) para. 22 with further references). The same also applies with regard to stating the considerations that argue in favour of the confidentiality of the information requested.

34 The court responsible for finding the facts is therefore obliged, before issuing a decision to take evidence by submission of the documents, to first exhaust the means available to it under the principle to conduct ex officio investigations in order to clarify the facts and to determine whether it may be able to decide on the existence of the asserted grounds for refusal of the application without inspecting the documents in question. To this end, the authority wishing to refuse access to information must present circumstances in a comprehensible manner also allowing the applicant, who is precisely unaware of this information, to conclude that the requirements for invoking the ground for refusal are met. In contrast, an inspection of the documents withheld becomes relevant for the decision if the information provided by the authority - taking into account the result of the assessment of the factual and legal situation - is not sufficient for an examination of the grounds for refusal (see BVerwG, decision of 23 May 2016 - 7 B 47.15 [ECLI:DE:BVerwG:2016:230516B7B47.15.0] - (...) para. 8 et seq. with further references).

35 The relevant point in time for examining the request for access to information is the factual and legal situation at the time of the last oral hearing before the court responsible for finding the facts (see on the whole BVerwG, judgment of 10 April 2019 - 7 C 22.18 [ECLI:DE:BVerwG:2019:100419U7C22.18.0] - (...) para. 46 et seqq. with further references). This also applies to the judicial review of the weighing of interests performed by the authority. The claimant's view that the defendant is bound by the grounds invoked in the objection notice (...) with regard to the statement of weighing considerations is not correct. There is no legal basis apparent for such a restriction.

36 In accordance with these standards - to the extent that, according to the legal assessment carried out by the court responsible for finding the facts, the documents requested by the claimant are to be considered internal communications - the weighing performed by the defendant with regard to the documents under no. 1 and 4 between the public interest in the disclosure of the environmental information requested and the interest in refusing disclosure will have to be reviewed in full by the court. To this end, a further investigation of facts and an assessment by the court responsible for finding the facts is necessary, requiring the case to be remitted to the Higher Administrative Court for a further hearing and decision.